The Very Secret Hearing

The Guantánamo military commission for accused USS Cole bombing mastermind Abd al Rahim al-Nashiri had its first, but certainly not its last, secret session last Friday, June 14. According to Carol Rosenberg of the Miami Herald and Ben Fox of the Associated Press, the hearing was 78 minutes long, and was closed both to the public and to the defendant. The subject of the hearing, and the title of the government motion being argued, were also classified. Defense counsel were permitted to attend but Nashiri’s attorney Rick Kammen told Rosenberg, “There was a secret session. That’s all I can say.”

What was discussed, and why the secrecy? Court filings in both Nashiri’s case and the September 11 case provide some clues about the subject of the hearing, though not many:

The motion heard at the closed hearing was AE92, a classified “Government Ex Parte In Camera Filing And Motion for Finding,” which is redacted in full and whose full title is classified.

According to defense filings, AE92 is ”identical” to classified government filing AE52 in the September 11 case.

According to this government filing, the defense for all five September 11 defendants and for Nashiri filed a joint response to AE92/AE52.

When Nashiri’s attorneys asked the prosecution to provide an unclassified version of AE92 so they could share it with their client, the prosecution replied that they would not because “there is no practical way to redact or summarize AE092 to an unclassified level.” (So if you’re waiting for the redacted transcript of last Friday’s closed hearing, you are likely to wait a while).

Before closing the hearing on Friday, June 14, Judge James Pohl found that AE092 “does not relate to evidence the Prosecution intends to introduce on the merits of the case.”

In the September 11 case, both the defense and the prosecution have filed several requests for extensions regarding AE52. Mustafa Hawsawi’s counsel asked for an extension because “[d]efense counsel and Mr. Hawsawi’s mitigation expert need to discuss certain sensitive issues with Mr. Hawsawi” in order to respond to the secret motion.

As in Nashiri’s case, the 9/11 defendants moved for an unclassified summary of AE52. The prosecution refused, on grounds that any summary would reveal the information being concealed.

In the 9/11 case, defense counsel has said that evidence from a motion it filed for “Access to Buildings and Locations in Which the Defendants May Have Been Confined” is “relevant and necessary” for argument about the secret motion.

So we have a motion brought by the government, whose central issue is highly classified—so classified that the government will not provide a redacted version of the motion, or even its full title or general description of its subject matter. The government filed an identical motion in two separate criminal cases, for all six former CIA prisoners being tried by the military commissions. Attorneys for all six detainees filed an identical initial response. The motion concerns mitigation evidence, not the prosecution’s case-in-chief. Defense counsel have notified the court that they need to disclose evidence about CIA prisons in order to discuss it.

Based on all these factors, I strongly suspect that the motion concerns how to handle evidence of the defendants’ torture. I’m not sure what other issue would lead to an identical motion in both cases; Nashiri and the September 11 defendants are being tried for entirely different crimes. But it is not possible to be certain given all the classification—and it is even harder to guess the precise subject of the motion: an argument that the government need not produce evidence of the defendants’ torture if it would be “cumulative”? That evidence of other detainees’ treatment at the same prison is not relevant for mitigation? Some sort of stipulation that the government would not contest the defendants’ accounts of their torture in CIA custody, and therefore was not required to produce corroborating evidence? Based on where we are in the proceedings I think an attempt to limit the scope of discovery regarding CIA abuses is most likely, but that’s speculation. Perhaps the equivalent hearing in the September 11 case will leave a few more bread crumbs for the press and public to follow.

Defense attorneys would probably like to tell the press what the hearing was about and what the outcome was. They would certainly like to tell their clients. But they cannot do so, because in order to meet with their clients they had to agree to an extremely restrictive protective order that the attorneys say makes a full factual investigation of the case “virtually impossible.”

The protective order prevents attorneys from disclosing any information from the defendants about their treatment in CIA custody, on grounds that the defendants were “exposed to classified sources, methods, and activities” at the black sites. More detailed guidance is in the government’s “Classification Guidance for Rendition, Detention and Interrogation Program Information,” but that itself is a classified document.

Lieutenant Commander Kevin Bogucki, military defense counsel for Ramzi bin al Shibh, argued at a hearing last October that:

to characterize our clients as having been participants in the CIA program would be like characterizing an assassination victim as a participant in the assassination program. It is ridiculous to suggest that somehow they’ve been afforded access to classified information and that therefore their memories need to be treated as classified information

Under the protective order, the courtroom in Guantánamo is equipped with a censorship button, which cuts the audio feed whenever classified matters are discussed. Several times a court security officer has pressed the button when an attorney made general references to their clients being tortured. In one hearing in January, an off-site censor (likely the CIA) muted the audio feed when an attorney began arguing a motion about preserving evidence of the black sites. After that incident Judge Pohl, who had not known that anyone outside the courtroom could cut the feed, said that “this is the last time…. any other third party will be permitted” to use the censorship button. But as to the substance of what is classified, Judge Pohl has deferred completely to the CIA and the prosecution, and last Friday he readily agreed to close the courtroom to the accused and the public to discuss the secret motion.

The Constitution Project’s Task Force on Detainee Treatment found that

The high level of secrecy surrounding the rendition and torture of detainees since September 11 cannot continue to be justified on the basis of national security…Ongoing classification of these practices serves only to conceal evidence of wrongdoing and make its repetition more likely. As concerns the military commissions at Guantánamo, it also jeopardizes the public’s First Amendment right of access to those proceedings, the detainees’ right to counsel, and counsel’s First Amendment rights.

The Task Force recommended that the Obama administration cease its attempt to censor the defendants’ descriptions of their treatment at the black sites:

Apart from any steps needed to prevent security threats against individual intelligence agents, the executive branch should cease its attempts to prevent detainees from providing evidence about their treatment in CIA custody. Guantánamo detainees obviously hold no security clearances and have never signed nondisclosure agreements with the United States government, and were exposed to “intelligence sources and methods” only involuntarily.

With last Friday’s secret hearing on the secret motion with a secret title, the military commissions seem to have gone in the opposite direction. Despite criticism, the prosecution has not stopped concealing evidence of torture. Instead, it is concealing its concealment of evidence of torture. This jeopardizes not only the public’s right of access but attorneys’ ability to present evidence of the defendants’ torture as mitigation evidence in a capital case. The exclusion of the defendants from crucial pretrial motions also increases the chances that any guilty verdict in these cases will be overturned on appeal. If so, family members of September 11 and USS Cole victims who have waited for justice for over a dozen years would have to wait even longer.

The views expressed in this blog post are not necessarily those of TCP, its committees, or boards.

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